Judicial impartiality and independence in divided societies: an empirical analysis of the Constitutional Court of Bosnia-Herzegovina

Schwartz, A. and Murchison, M. J. (2016) Judicial impartiality and independence in divided societies: an empirical analysis of the Constitutional Court of Bosnia-Herzegovina. Law and Society Review, 50(4), pp. 821-855. (doi: 10.1111/lasr.12237)

Abstract

The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-national affiliation on judicial behaviour. Moreover, our findings suggest that this influence may actually increase as a judge acclimates to the dynamics of a divided court. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Schwartz, Dr Alex
• Authors: Schwartz, A., and Murchison, M. J.
• Subjects: J Political Science > JA Political science (General); K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Journal Name: Law and Society Review
• Publisher: Wiley
• ISSN: 0023-9216
• ISSN (Online): 1540-5893
• Published Online: 07 November 2016
• Copyright Holders: Copyright © 2016 Law and Society Association
• First Published: First published in Law and Society Review 50(4): 821-855
• Publisher Policy: Reproduced in accordance with the publisher copyright policy

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